Manafort Sentencing Again Raises Issue of Racism in US Courts, With Harmful Impact in This Country & Abroad
Case In Point: US Judge Refused to Consider Grievous Damages Inflicted on Brown & Black Ecuadorians From Massive Oil Contamination by Chevron — a US Company Led by Mostly White Men
Racism in US courts recently played a factor in delivering a relatively light prison sentence to Paul Manafort by a federal judge of the same race, white. Yesterday, Manafort took a harder punch from a second sentence of a few more years, imposed by a white female judge appointed by former President Obama, Amy Berman Jackson.
Manafort, as most people know, was President Trump’s affluent campaign chairman. Though shocking, there’s nothing new about his overall sentencing, which is more lenient than other cases against people of color involving similar or lesser charges.
Judicial racism has been around since the first courthouse opened three centuries ago. It has resulted in the persecution of people of color living not just in the US, but also in other countries.
Consider the long-running environmental case brought by 47 brown and black Ecuadorians from the Amazon rainforest against the American oil giant, Chevron.
After the company lost a comprehensive trial in Ecuador in 2011 that included a 220,000-page record with 105 technical evidentiary reports, a white US federal judge tried to bail the company out from his Manhattan courtroom. Chevron sued the Ecuadorians in US court to get a “judgment” on the other Ecuador judgment that it already lost in an eight-year trial in the country where the oil giant had accepted jurisdiction.
The pro-business US federal judge who took this bizarre and completely inappropriate case, Lewis A. Kaplan, refused to seat a jury and promptly ruled against people of color, many indigenous living in the rainforest of the South American country, Ecuador.
(Kaplan’s decision is of no moment. His ruling was ignored by the Supreme Court of Canada, which ruled the Ecuadorians could try to seize Chevron’s assets in that country to satisfy their Ecuador judgment of $9.5 billion. Sixteen appellate judges in Ecuador already have affirmed the findings against Chevron, which sold all its assets in Ecuador during the trial as evidence against the company mounted.)
In 2014, Kaplan found the impoverished Ecuadorians, along with some of their attorneys, guilty of fraud and bribery. He based his decision primarily on testimony from an admittedly corrupt Chevron witness, paid at least $2 million in fees and various benefits by the company. The witness, Alberto Guerra, later confessed under oath that he had lied in Kaplan’s courtroom. But Kaplan refused to reconsider his ruling, fearing that his prejudicial views to protect Chevron and damn the dark Ecuadorians would be exposed.
Kaplan has never admitted his prejudice, but those of you interested should read this 2017 book, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives by the Pulitzer Prize winning journalist at ProPublica, Jesse Eisinger.
Kaplan and Manafort have both benefitted from the Club.
Eisinger wrote about Kaplan’s handling of a DOJ case against KPMG accounting executives over their fraudulent tax shelter scheme to help the super-rich dodge their taxes:
“Kaplan had been at the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison for 24 years before his judicial appointment. He kept close friendships with its lawyers, once serving as a character witness for a retired partner who had been disbarred for pilfering more than $500,000 from a family trust. Immediately, we knew KPMG was about to see its fortunes change for the better.”
Further, the Ecuadorians who witnessed the Kaplan-orchestrated show trial against them, including community-leader Donald Moncayo, came away with the impression that the judge is racist. This blog from a lawyer on the case, Harvard Law graduate Marissa Vahlsing, illustrates my point. (Kaplan demanded Moncayo turn over his private laptop. Moncayo did so immediately but cried when large black SUVs pulled up with lawyers to take his laptop on a NYC street corner. The laptop contained mostly photos of his children and little else.)
Earlier this year, five years after his ruling against Moncayo and other Ecuadorians, Kaplan’s condemnation continues to help Chevron deliver painful blows to the people it poisoned almost four decades after the company created the massive and intentional oil contamination in the rainforest.
For many reasons, Chevron, with Kaplan’s help, is trying to stop the ability of the Ecuadorians and their representatives to raise funds to pay their lawyers in Canada, who are trying to obtain a $9.5 billion Ecuador damage award against Chevron in Canada’s court system. (Kaplan says he won’t allow them to obtain their damage award in the US.)
Recent writings by Kaplan about the Canada case have been misleading at best and present yet another example of how he hides truths in the courtroom to protect Chevron. Troubling details follow. While we know racism is often complicated, shining a fresh spotlight on injustice will identify troubling truths.
For one thing, it is obvious Kaplan loathes the main US attorney for the Ecuadorians, Steven Donziger. Donziger is a human rights lawyer who has been called a “hero” of the environmental movement by non other than Rex Weyler, the co-founder of Greenpeace. Kaplan has been more than willing to sacrifice the health and welfare of the Ecuadorians — many of whom are dying of cancer — to fabricate evidence that has been used to suspend the American lawyer from the practice of law on an interim basis. Kaplan also has ruled that Donziger and his clients must pay Chevron up to $34 million in litigation costs associated with its discredited fraud and bribery case in the US — an obvious attempt to silence Donziger’s and many supporters’ effective advocacy.
After working for the Ecuadorians as their US spokesperson since 2008, I have seen no evidence of fraud and bribery by Donziger, other lawyers and the Ecuadorians. I do not believe Kaplan’s ruling.
I do believe and know this: Texaco, which merged with Chevron in 2001, intentionally contaminated the Amazon rainforest after dumping over 16 billion gallons of oil toxins into rivers and unlined, storage pits that killed and harmed thousands of poor Ecuadorians since drilling began in the 1970s. I’ve been to Ecuador many times and seen it with my own eyes. So has US Rep. Jim McGovern, Weyler of Greenpeace, prominent Indigenous leader Phil Fontaine, formerly the National Chief of Canada, and countless others.
Also, I believe anyone truly knowledgeable about this case, whether supportive of Chevron or not, does not believe any of the 47 Ecuadorian poverty-stricken plaintiffs participated in a fraud and bribery scheme. Some of them, though, think only Donziger and an Ecuadorian lawyer, Pablo Farjado, might be or are guilty. I do not, however.
Regardless, Texaco, now known as Chevron, committed one of the worse environmental crimes in history in Ecuador’s Amazon. This crime has lasted now for five decades and counting. An American judge should demand Chevron pay the damages award, based on undisputed facts about the pollution and its impact upon the Ecuadorians, their soil, their water and the lives of their family and friends.
Distinguishing between two different crimes —the contamination and the bribery — is important.
Here’s why. A group of indigenous Ecuadorians and villagers sued Texaco in 1993 in the Manhattan courthouse where its headquarters was located, the Southern District of New York (known as the SDNY). A judge from the SDNY (not Kaplan) booted the case to Ecuador when Chevron, after buying Texaco, praised Ecuador’s court system and promised to accept an Ecuador court’s jurisdiction. In 2011 the Ecuadorians won the damages award in an Ecuador court, exactly where Chevron wanted the case litigated. Knowing it would lose the case based on the evidence, Chevron that same year filed a counter lawsuit back in Texaco’s home court — Kaplan territory and the same US court it tried successfully to avoid when the case was originally filed.
During the retaliatory litigation and after, Kaplan has allowed all of Chevron’s highly suspect fraud/bribery evidence into his court but has refused to hear the Ecuadorians’ overwhelming contamination evidence that clearly proved Chevron’s guilt and its responsibility to clean the pollution and provide health care for the poor.
Expressing deep concern, with some measure of sarcasm, Kaplan warned from the bench that Chevron would have to close gas stations if it paid the $9.5 billion damage award from the Ecuador court. (Chevron’s profits in one year, 2018, totaled $20 billion.)
As expected, Kaplan ruled in Chevron’s favor, protecting the oil giant from any seizure of its assets in the US. (We should remember that BP, a UK oil company, paid $60 billion to cleanup contamination in the Gulf Coast and provide funds to the 11 families who lost family members on the Deepwater Horizon. BP also helped nearby companies re-cover massive amounts of property and profits lost to the oil accident, as opposed to the deliberate dumping engaged in by Texaco/Chevron in Ecuador. It also is important to note the BP disaster was smaller and far less impactful than the Chevron dumping in Ecuador. Further, BP never closed a gas station.)
Kaplan also tried but failed to stop the courts from other countries from helping the Ecuadorians, who later filed an asset seizure case in Canada to obtain what is now, eight years later, an increased damage award of $12 billion, with interest.
Importantly, Canada is why Kaplan reappears in the case.
Representing Chevron in a new case are the same attorneys who argued the fraud and bribery case. One is Gibson Dunn’s Randy Mastro, a former employee of the former NYC Mayor Rudy Giuliani, now serving as personal attorney for the Not-So-Honorable Donald Trump. (Manafort, Trump’s guy, met with Ecuador President Lenin Moreno in May 2017 before Manafort was indicted, charged and sentenced, FYI. I have no evidence that Manafort discussed the contamination case with Ecuador’s new president on Chevron’s behalf but Manafort, at one time, lobbied for Chevron in the Ukraine.)
In Canada, the Ecuadorians have been allowed to litigate their case in the country’s court system with great success, including a unanimous ruling in their favor from the country’s Supreme Court. They are now awaiting a second ruling from the Supreme Court of Canada on whether they can seize assets from both Chevron USA and its wholly-owned subsidiary, Chevron Canada. If Chevron Canada cannot be sued, then the trial on seizing assets will be brought only against Chevron USA in a Canadian court.
Surprisingly, Kaplan offered misleading information, if not intentional lies, about this very topic in a recent decision he issued on Chevron’s legal fight to stop Donziger from fundraising for the Ecuadorians. Kaplan writes in the memo’s footnotes that the lower Canadian courts have found that both Chevron USA and Chevron Canada cannot be sued and he doesn’t even mention that all sides are awaiting the ruling by the Supreme Court of Canada and that a trial will take place, with or without Chevron Canada. This is a small, but telling, illustration of Kaplan’s dishonesty that I have witnessed for nine years now.
Contrary to the Kaplan memo, the Ecuadorians have a shot at obtaining the damages award, which explains why Chevron and Kaplan have once again joined hands to prevent a possible Canadian seizure of assets.
After his fraud and bribery ruling based on Guerra’s false testimony in 2014, Kaplan stated that Donziger could continue to work for his clients, the Ecuadorians, and be paid, but not with any funds collected from the $12 billion judgment. Obviously, the Ecuadorians haven’t collected any funds yet, but that day is not far off. Chevron knows its position in Canada can be strengthened by stopping the fundraising that supports the Canadian legal team. Donziger does all of the fundraising for his clients.
Chevron, too, clearly does not care about the health of the Ecuadorians and wants to see Donziger lose every dime ever paid to him for his labors on the case. If Kaplan slams the Ecuadorians yet again, it is possible Chevron may bankrupt Donziger over time, shrinking his finances to support his family — a wife and young son.
Will solid evidence — as opposed to a person’s skin color or religion or culture — ever be the only reason one day to find people of color guilty or not guilty of any charge, civil or criminal?
The white man in the White House, Donald Trump, may pardon his white friend, Mr. Manafort, in the future, the news media tells us.
But the white judge in the NY Court House has, in effect, pardoned Chevron already for its environmental crimes in Ecuador that have caused death and terrible harm to people of color.
Kaplan should give the Ecuadorians a chance to raise funds and litigate their case next door, as is their First Amendment right.
Hopefully, Canada will consider all the evidence, not just testimony from a paid witness and a desire to protect wealthy oil companies in the process of destroying our planet.
On that day, the world will strike one in favor of Indigenous rights, environmental restoration, and saving the planet.